Tuesday, October 23, 2012Last Update: 8:29 AM PT

Trust Us, NSA Tells Privacy Plaintiffs

SAN FRANCISCO (CN) - The public should trust that the National Security Agency will use its powers under a Terrorist Surveillance Program only when absolutely necessary, the NSA claims in Federal Court. That's what the NSA said in response to a class action that claims the agency would have unlimited authority to monitor anyone at any time if the class loses its lawsuit challenging the government's claim of state secrets protection. In its "Government Defendants' Reply in Support of Second Motion to Dismiss and for Summary Judgment," the NSA claims it is not obligated to turn over evidence in the class action that accused it of warrantless "dragnet" surveillance of U.S. citizens. Lead plaintiff Carolyn Jewel represents telephone service customers who accuse the NSA of using telecommunications companies to spy on customers under the Terrorist Surveillance Program (TSP). Created after the Sept. 11 terrorist attacks, critics claim the NASA used the TSP to violate the Constitution and the Foreign Intelligence Surveillance Act. Jewel et al. claim that dismissal of the complaint against the NSA would be a weak concession by the judiciary, and a breach in the system of checks and balances. The NSA wants the case dismissed because supplying evidence would compromise national security. "This lawsuit puts at issue alleged intelligence activities of the National Security Agency ('NSA') purportedly undertaken pursuant to presidential authorization since the terrorist attacks of September 11, 2001," the NSA says in its response. "Plaintiffs allege that the NSA engages in warrantless 'dragnet' surveillance by collecting the content of millions of domestic communications, as well as communication transactional records. "For the past six years, the nation's most senior intelligence officials, in succeeding administrations, have consistently advised this court that litigation of plaintiffs' allegations would risk exceptional damage to national security, setting forth in detail the matters at issue. Renewed invocation of the state secrets privilege in this action by the Director of National Intelligence has undergone rigorous review within the Executive Branch under a process providing that privilege will only be asserted where necessary to protect against significant harm to national security. Contrary to plaintiffs' suggestion, in these circumstances dismissal would not constitute an abdication of judicial authority, but the exercise of judicial scrutiny of the privileged information at issue and the application of established law to protect compelling national security interests." The NSA claims that Jewel's assertion that FISA displaces the state secrets privilege is false, and that her argument that 9th Circuit "precedent concerning the privilege has been effectively overruled by the Supreme Court and that, as a result, this court may only consider a privilege assertion in response to specific discovery requests," is also incorrect. "Finally, citing hearsay and speculation in media reports, plaintiffs wrongly contend that their case may proceed on "'on-privileged' evidence," the NSA said. "Plaintiffs' opposition does not present a way forward, but a roadmap to why further proceedings would risk the disclosure of highly sensitive NSA sources and methods." U.S. District Judge Jeffery White will consider the motion on Nov. 2. The trial, if one occurs, is set for Dec. 14.